In 1705, James Fraser concluded a marriage contract with Margaret Torry, the daughter of John Torry, who held lands and tenants in Elgin. Margaret was heir to her father's property, and the marriage contract granted James the right to the rents, fees, duties, etc. of the Elgin tenants for his life should Margaret pre-decease him. Margaret and James had three children, and by the time of this lawsuit only their daughter, Margaret Fraser, remained alive. In the 1720s, James's financial affairs began to fall in disarray and he attempted to sell his wife's heritable lands, triggering a series of legal disputes resulting in the land's sequestration. After the death of James and his eldest son, John, James's creditors laid claim to the Elgin rents and fees. James Sinclair challenged the creditors in the Court of Session, arguing that his grandfather's right to his grandmother's heritable lands ceased with his death, devolved on his now dead uncle, and subsequently now fell to his mother. In other words, the heritable lands ceased to be part of James Fraser's estate when he died and reverted to his wife's estate, subsequently inherited by her children. Sinclair contended that as the heritable lands constituted part of James Fraser's estate in life only, his creditors had no claim to them after his death. The Court of Session agreed and found for James Sinclair.

Published Reports

Dalrymple, Decisions of the Lord of Council and Session, from 1766 to 1791, pg. 450

Locations

Session Papers

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